People v. HSU
| Decision Date | 18 February 2009 |
| Docket Number | No. A120768.,A120768. |
| Citation | 168 Cal.App.4th 397,85 Cal.Rptr.3d 566 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Norman Yung Yuen HSU, Defendant and Appellant. |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Morrison & Foerster, James J. Brosnahan, Somnath Raj Chatterjee, and Eva K. Schueller, San Francisco, for Appellant.
Edmund G. Brown Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney, General Gerald A. Engler, Senior Assistant Attorney General, Martin S. Kaye, Supervising Deputy, Attorney General, for Plaintiff and Respondent.
On February 6, 1992, pursuant to a negotiated disposition, Norman Yung Yuen Hsu (Hsu) entered a no-contest plea to one count of grand theft (Pen.Code, §§ 484, former 487.1, subd. 1). Shortly thereafter, he failed to appear for sentencing. By the time he was arrested and returned to California, some 15 years later, the judge who initially took Hsu's plea in this matter had retired from the bench and was unavailable to impose sentence. Thereafter, Hsu was brought before a different judge to be sentenced. At sentencing, the judge followed the terms of the original 1992 plea bargain and sentenced Hsu to a three-year state prison term, with victim restitution to be determined in future proceedings.
On appeal, Hsu contends error in two of the court's presentencing rulings. First, he claims the trial court erred in denying his motion to dismiss the charges against him because the 15-year delay in sentencing violated his constitutional right to a speedy trial. (U.S. Const., 6th Amend.) Secondly, he claims the trial court erred in denying his motion to withdraw his plea because he was not sentenced by the same judge who took his original plea, in violation of People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220 ( Arbuckle ). 1
We affirm the judgment.
On December 4, 1991, an information was filed in the San Mateo County Superior Court charging Hsu with 16 counts of grand theft and enhancing allegations. The charges emanate from Hsu's business dealings, which were described by the prosecution as “a pyramid or ‘Ponzi’ scheme,” whereby Hsu solicited multiple investors by posing as the owner of a company that bought and sold apparel at a profit. Hsu never engaged in any legitimate business activity. Instead, he simply paid a return to earlier investors with money obtained from later investors. The scheme collapsed in 1990 when Hsu was unable to recruit new investors and he ran out of money to continue making payments.
On February 6, 1992, pursuant to a negotiated disposition, Hsu entered a no-contest plea before Judge Aram Severian to one count of grand theft ( Pen.Code, §§ 484, former 487, subd. 1), with an admission of taking in excess of $100,000 (Pen.Code, § 12022.6, subd. (b).) A copy of the change of plea form filed on February 6, 1992, provides that Hsu would be sentenced to an aggravated term of “[t]hree years state prison; remaining counts dismissed; Harvey Waiver as to dismissed counts for sentencing & restitution.” 2 The change of plea form indicates Hsu refused to waive his “right to be sentenced by the judge taking my plea....” Hsu was represented during the plea negotiations by attorney Linda Bramy.
Hsu was to be sentenced on April 7, 1992. On that date, attorney Anthony Gibbs appeared in court on Hsu's behalf, indicating he had recently been retained to represent Hsu and asking that the sentencing hearing be continued. Hsu's sentencing hearing was continued to May 1, 1992, and then again to June 10, 1992.
On June 10, 1992, Hsu failed to appear for sentencing before Judge Severian. Mr. Gibbs provided the court with a handwritten note from Hsu. The note indicated that Hsu had gone to Boston to take care of a personal matter and would return the following Monday; however, Hsu did not return for sentencing. Judge Severian forfeited the bail that had been posted, and issued a bench warrant with bail set in the amount of $2 million.
Hsu originally fled to Asia but he returned to the United States around 2003. Hsu made no effort to hide his identity, and despite his fugitive status, records indicate he made frequent and notably large donations to dozens of political candidates. He became a regular fixture at political and philanthropic fundraisers in New York and California. In the meantime, Judge Severian, the judge who took Hsu's plea, retired from the bench in December 2000.
In 2007, Hsu learned that he was about to be arrested on the old 1992 California bench warrant. Before he could be arrested, Hsu arranged for his surrender on August 31, 2007. He appeared in court and posted $2 million cash bail. On September 5, 2007, Hsu once again failed to report for sentencing. A no-bail bench warrant was issued for Hsu's arrest.
On or about September 6, 2007, Hsu became ill while riding on an Amtrak train traveling from California to Denver, Colorado. Hsu was removed from the train and taken to a hospital in Grand Junction, Colorado. Later that day, FBI agents arrested Hsu pursuant to a warrant charging him with unlawful flight to avoid prosecution. On September 20, 2007, Hsu was extradited from Colorado to California.
During the course of these renewed proceedings, Hsu filed a motion claiming he was entitled to dismissal of the charges because the 15-year delay in sentencing, when authorities could have easily found and arrested him, violated his constitutional right to a speedy sentencing. Additionally, Hsu filed a motion asserting that he was entitled to withdraw his plea under Arbuckle and its progeny because he would not be sentenced by the same judge who accepted his plea, in violation of an express term in the written plea agreement.
On January 4, 2008, Judge Stephen Hall denied these motions and sentenced Hsu to the bargained-for term of three years in state prison, with all the other counts and enhancements dismissed. The court imposed a restitution fine of approximately $200 but held $1 million of the bail posted by Hsu pending final determination of victim restitution. 3 ( Gov.Code, § 13967, subd. (c).)
This appeal followed.
[1] Hsu challenges the trial court's denial of his motion to dismiss the charges against him, arguing that the more than 15-year delay between his no contest plea and his sentencing violated his Sixth Amendment right to a speedy trial. (U.S. Const., 6th Amend.) 4 It is well settled that “the right to a speedy trial is ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” ( Barker v. Wingo (1972) 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101, fn. omitted ( Barker ).)
[2] Preliminarily, the parties disagree over whether the right to a speedy trial includes the right to a speedy imposition of sentence. The trial court believed Hsu had the right to a speedy sentence, and this view has support. (See Pollard v. United States (1957) 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 []; see People v. Broughton (2003) 107 Cal.App.4th 307, 319, 133 Cal.Rptr.2d 161 [].) We need not address this issue because, even were we to conclude that Hsu had a Sixth Amendment right to speedy sentencing, he has failed to establish a violation of that right.
In considering the matter below, the trial court first applied standard waiver doctrine to Hsu's motion, finding that Hsu waived his right to a speedy sentence by failing to appear for his originally scheduled sentencing hearing and remaining at large for 15 years. Hsu does not dispute that he fled in order to avoid being sentenced in this case, and there is certainly authority supporting the proposition that a fugitive defendant may not complain of delay caused by his deliberate evasion of the court's process. (See People v. Perez (1991) 229 Cal.App.3d 302, 308, 279 Cal.Rptr. 915 []; see also U.S. v. Sandoval (9th Cir.1993) 990 F.2d 481, 484-485 ( Sandoval ) [ ]; U.S. v. Blanco (2d Cir.1988) 861 F.2d 773, 780 []; U.S. v. Manning (9th Cir.1995) 56 F.3d 1188, 1195 ( Manning ) [ ]; U.S. v. Aguirre (9th Cir.1993) 994 F.2d 1454, 1457, fn. 5 ( Aguirre ) [].)
However, acknowledging that some courts have found that a defendant's flight is simply one of several pertinent factors which must be considered as part of the court's speedy-trial inquiry, the trial court went ahead and conducted the balancing test set forth in Barker, “whereby the conduct of both the prosecution and the defendant are weighed” to determine if there has been a constitutional violation. ( Rayborn v. Scully (2d Cir.1988) 858 F.2d 84, 89, original italics ( Rayborn ).) Specifically, the trial court indicated “[t]here really isn't any need to proceed further with any balancing, however, even if I were to go forward and conduct a balancing test in this case, it is the defendant's responsibility for the delay which carries the day here.”
[3] Out of an abundance of caution, we too apply the four-part analysis of Barker, as...
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